South Africa: Supreme Court of Appeal Closes Another Door On Coal Mine in Mpumalanga Protected Area

On 9 July 2019, the President of the Supreme Court of Appeal (SCA) dismissed Atha's latest attempt to appeal the High Court's decision to set aside permissions for a new coal mine inside a declared protected environment.

In November 2018, the High Court set aside the 2016 decisions of former Minister of Mineral Resources Mosebenzi Zwane and the late Minister of Environmental Affairs Edna Molewa to permit a new coal mine to be developed inside the Mabola Protected Environment near Wakkerstroom, Mpumalanga, with a punitive costs order against the state respondents.

In January 2019, the Pretoria High Court refused Atha permission to appeal that judgment, and awarded costs in favour of the civil society coalition. The SCA found similarly in April 2019 - that there was no prospect of successfully overturning the High Court judgment, and also awarded costs in favour of the coalition who had opposed Atha Africa's petition.

Not satisfied, in June 2019, Atha petitioned the President of the Supreme Court of Appeal, asking her to reconsider the SCA's April 2019 decision to enable Atha to appeal the High Court Judgement. That petition has now been refused, and Atha has been ordered (again) to pay the civil society coalition's legal costs.

The Mabola Protected Environment was declared under the Protected Areas Act in 2014 by the Mpumalanga provincial government as part of the declaration of more than 70 000 hectares of protected area in the Mpumalanga grasslands. This followed years of extensive research and planning by a number of government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism & Parks Agency.

South Africa's 22 Strategic Water Source Areas, of which the Enkangala-Drakensberg Strategic Water Source Area is one, supply water to South Africa's largest urban centres, agricultural areas and support downstream economies and ecosystems.

Atha, who has stated that its Indian holding company spent $40 million on acquiring the initial prospecting right, has never produced evidence of any off-take agreements for the coal it hopes to mine. The ecological sensitivity, hydrological importance and planned legal protection for the area that includes the proposed mining area were known by Atha before its acquisition.

The coalition that brought the court application to set aside permissions for the proposed coal mine comprises the Mining and Environmental Justice Community Network of South Africa, groundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development (AWARD) and the Bench Marks Foundation. The Coalition is represented by the Centre for Environmental Rights.

For media enquiries, please contact CER attorney and Mining Programme Head Catherine Horsfield on chorsfield@cer.org.za or 021 447 1647, or CER Deputy Director Wandisa Phama on wphama@cer.org.za.

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